Economic and Financial Court at the Magistrate Level?
By Amb. Emmanuel Mwamba
On Thursday, 27th January 2022, a prosecutor from the Anti-Corruption Commission applied for an adjournment and informed Lusaka Chief Resident Magistrate Court, Hon. Dominic Makalicha, that the case of former Ministry of Health Permanent Secretary, Dr. Kennedy Malama and five others facing corruption charges, will be tried under the newly constituted Economic and Financial Crimes Division Court.
In response to the application for an adjournment, Magistrate Makalicha informed the court that there was a team of Magistrates that was constituted to handle such cases.
He named Magistrate Hon.Stanford Ngobola, Hon.Faides Hamaundu and Hon. Jennifer Bwalya as being among magistrates selected to run with the cases under the new Court.
During the ceremonial opening of the High Court on 10th January,2022, Chief Justice Mumba Malila SC announced that he had set up the Economic and Financial Crimes as a division of the High Court.
He announced the establishment of the new division as provided for under Article 133(3) of the Constitution of Zambia and Section 3 of the High Court Act.
He said he had since signed a Statutory Instrument to establish the new division under the High Court.
ARTICLE 133 &134
Article 133 &134 establish the High Court and its divisions.
133. (1) There is established the High Court which consists
of—
(a) the Chief Justice, as an ex-officio judge; and
(b) such number of judges as prescribed.
(2) There are established, as divisions of the High Court, the
Industrial Relations Court, Commercial Court, Family Court and
Children’s Court.
(3) The Chief Justice may constitute, by statutory instrument,
specialised courts of the High Court to hear specific matters.
(4) The composition of courts specified in clauses (2) and (3)
shall be prescribed.
134. The High Court has, subject to Article 128—
(a) unlimited and original jurisdiction in civil and criminal
matters;
(b) appellate and supervisory jurisdiction, as prescribed; and
(c) jurisdiction to review decisions, as prescribed.
CONCERNS
The announcement made by the Chief Resident Magistrate that they have appointed certain magistrates to handle economic and financial crimes elicited my interests and concerns.
The Subordinate Courts are established under Article 120 of the Constitution of the Republic of Zambia, Act No. 2 of 2016.
The operations and functions of Subordinate Courts are regulated under the Subordinate Courts Act, Chapter 28 of the Laws of Zambia which provides for the constitution, jurisdiction and procedures as well as appeals to the High Court and other matters incidental or connected thereto.
Subordinate Courts are controlled and supervised by the High Court through reviews and appeals.
Subordinate Courts are presided over by Magistrates who are appointed by the Judicial Service Commission acting in the name and on behalf of the Republican President.
Out of 117 districts, there are now 64 Subordinate Courts operating in Zambia.
In Zambia nearly all criminal court cases start in the magistrates’ court, and around 95% will be completed there.
The magistrate courts are courts of first instance for criminal offences.
Magistrates deal with three kinds of cases:
1. Summary offences. These are less serious cases, such as motoring offences and minor assaults. These cases are generally disposed off in the magistrates’ courts.
2. Either-way offences. As the name implies, these can be dealt with, either by magistrates or before a judge at the High Court.
Such offences include theft and handling stolen goods. A defendant can insist on their right to trial in the High Court. Magistrates can also decide that a case is so serious that it should be dealt with in the High Court – which can impose tougher sentences if the defendant is found guilty.
3. Indictable-only offences, such as murder, manslaughter, defilement, rape and armed robbery come to the Magistrate Court for the process of referring to the High Court. These cases are heard by the high court.
ECONOMIC AND FINANCIAL CRIMES COURT AT THE MAGISTRATE COURT
So if the magistrate court is the court of first instance for criminal offences including economic and financial crimes, how does a division of the high court, get established at the magistrate court?
IT APPEARS TO BE ADHOC AND ADMINISTRATIVE
It is clear that the Chief Justice requires to issue rules and regulations and explain how this Division of the High Court, will have a presence at the subordinate courts.
I am aware that the Judiciary has in the past set up, in an adhoc or administrative manner, initiatives of fast track courts or specialised courts such as identifying and picking particular magistrates to obtain special training and handle; traffic offences, gender-based violence, human trafficking and child and juvenile cases.
These courts are usually sponsored or have operations costs met by partners such as the the Road Transport and Safety Agency (RTSA) and the United Nations Development Programmes (UNDP).
This is an administrative measure and the magistrates involved in these cases continue to do their prescribed and routine duties but handle these cases by allocating a specific day or period.
CONCLUSION
The earlier high profile anti-corruption crusade conducted between 2003-2008 failed largely because of jurisdiction and lack of legal framework.
The Task Force on Corruption, a special unit set up with joint operations from law enforcement agencies, was deemed illegal and was later disbanded.
Similarly, the new fight against corruption appear to move in the same direction with the setting up, on questionable legal basis, the Joint Investigations Team (JIT) and the Economic and Financial Crimes.
The Economic and Financial Crimes Division in the High Court is a good initiative to fight an endemic crisis of crimes related to corruption and economic plunder of public resources, but may be plagued by concerns and court applications questioning legalities.
This may derail the completion of these cases or may render cases to be stuck or locked in interlocutory processes for many years.
Infact these crimes may require legal definition and regulations and attendant legislation to be provided for if we are to effectively deal with the scourge of economic plunder.
I say this because the first cases allocated to the new court appear to be cases of abuse of office or authority than cases of economic or financial crimes!
As seen above, the setting of the Economic and Financial Crimes at the Magistrate will remain adhoc and administrative, as the actual court that has been set up is at the High Court in what appears to be an appellate court. S